“Cowboy” Bob Macy was a legendary — and infamous — prosecutor in Oklahoma City. Elected the top law enforcer in his county five times, Macy, who died in 2011, was known for his wide-brimmed cowboy hat, his classic western bowtie, and carrying his gun in court. He was also known for his passionate advocacy in support of the death penalty. During his 21 years in office, Macy was personally responsible for sending 54 individuals to death row, an accomplishment that earned him the dubious distinction of deadliest prosecutor in America.
Also part of Macy’s legacy was the high rate of misconduct allegations levied against him — misconduct was alleged in 94 percent of the death cases he prosecuted and substantiated in one-third of them. Courts overturned nearly half of the death convictions Macy obtained; three of those defendants were ultimately exonerated.
The numbers paint a grim portrait of a prosecutor who once told members of a jury it was their “patriotic duty” to sentence a defendant to death. But Macy isn’t alone. He belongs to a small club of five so-called deadliest prosecutors identified in a new report released today by Harvard Law School’s Fair Punishment Project. Together, the five prosecutors, only one of whom is still in office, secured 440 capital convictions — the equivalent of 15 percent of the nation’s current death row population.
In July 1976, the U.S. Supreme Court decision in Gregg v. Georgia reauthorized the use of capital punishment, ushering in the modern death penalty era. The Gregg ruling offered a promise that the death penalty’s previously arbitrary and capricious nature, which contributed to the court’s 1972 decision in Furman v. Georgia to issue a moratorium on its use, could be reined in.
Forty years after Gregg, the FPP report demonstrates that the death penalty is largely driven by a small number of overzealous, often ethically tainted prosecutors in just a handful of jurisdictions across the United States — suggesting the ruling has failed to deliver on its promise.
“Furman got rid of the death penalty because of the disparities [in its application], and one of the ostensible reasons for allowing reinstatement in 1976 was that states would make its use more routinized, or at least more objective,” Daniel Medwed, a professor at Northeastern University School of Law who studies the role prosecutors play in securing wrongful convictions, told The Intercept. “And what this report says is that the promise of Gregg is unfulfilled; that it was a failure.”
In addition to Macy, the FPP report examines two prosecutors who each personally secured more than 35 capital convictions, and two more whose offices secured a combined 309 death sentences under their leadership. All five had allegations of significant prosecutorial misconduct leveled against them in connection to these cases.
In Robeson County, North Carolina, Joe Britt obtained 38 death sentences from 1974 to 1988. Courts later determined that Britt had engaged in misconduct in 14 of those cases, and two defendants were eventually exonerated.
Donald Myers, the top prosecutor in Lexington, South Carolina, is the only sitting prosecutor among the five profiled in the report. Myers has won 39 capital convictions since he began serving in 1977; misconduct was uncovered in nearly half of those cases.
In the 19 years that Lynn Abraham, also known as “Queen Death,” oversaw the Philadelphia County district attorney’s office, prosecutors secured a staggering 108 death sentences — second only to the 201 obtained in Houston, Texas, under the 21-year leadership of Johnny Holmes. Harris County, where Houston is located, has long been the single largest supplier of inmates to Texas’s death row.
Taken together, the report states, the prosecutors’ records “demonstrate that the death penalty has been, and continues to be, a personality-driven system with very few safeguards against misconduct and frequent abuse of power, a fact that seriously undermines its legitimacy.”
In an email to The Intercept, Robert J. Smith, a legal fellow at Harvard Law School and one of the report’s researchers, noted that the “fact that a few outlier personalities account for so many death sentences across the entire modern era of capital punishment, and that when those people leave the sentences tend to drop off dramatically, further bolsters the evidence that the vast majority of prosecutors and jurors reject the death penalty in practice.”
Since District Attorney R. Seth Williams, who previously worked for Abraham, took over her post in 2010, death sentences in Philadelphia County have declined dramatically, Smith points out. “The people of Philadelphia did not change in like a two-month period,” he said, emphasizing the heavy influence of personalities at the top in decisions to pursue death sentences.
Nationally, the number of new death sentences has declined in recent years. While four of the five prosecutors included in the report have left their posts, the authors note that “a small group of individuals continue to drive up the total number of death sentences nationwide, which contributes to a misperception that the death penalty is a common practice, when in reality, most of America’s prosecutors have abandoned it.”
According to the Death Penalty Information Center, just 2 percent of the country’s more than 3,000 counties are responsible for the majority of defendants on death row. That troubles Medwed, who argues that a capital punishment system driven by personality cannot stand “because the promise of Gregg was that … states have to set up systems that are checks against arbitrary and discriminatory application of the death penalty.” That was supposedly accomplished by only allowing pursuit of the death penalty where certain aggravating factors were present and certain mitigating circumstances could be weighed.
“But the reality is that prosecutors who want to seek death will find those aggravating factors,” Medwed said. “It continues to be [a] subjective, not objective [system] and is in the hands of individuals who have political axes to grind, or ideological bents,” he added. “It’s mind-boggling. As if all the cases of botched executions and innocence haven’t done enough to propel the abolition movement forward, this should do it — or I would hope this should do it.”